Opinion
No. C03-0092L.
February 17, 2006
ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE SURREPLY AND DIRECTING PLAINTIFF TO SUPPLEMENT THE RECORD
This matter comes before the Court on "Plaintiff's Motion to for Leave to File Instanter a Surreply to Defendant Pacific Union's [sic] Motion for Summary Judgment, or in the Alternative, to Strike Arguments Raised for the First Time in Defendant's Reply Brief." Dkt. # 63. Although plaintiffs took a huge risk when they ignored defendant's factual allegations regarding Mr. Rodgers' withdrawal of his request for FMLA leave in their opposition memorandum, they are correct that defendant did not refer to or rely upon those facts in the argument section of its motion. The Court will, therefore, accept and consider "Plaintiffs' Surreply to Defendant's Motion for Summary Judgment with Regard to New Arguments and Evidence Raised in Defendant's Reply Brief," filed as Attachment A to Dkt. # 63, and the "Supplemental Declaration of Georg Kargianis in Support of Plaintiffs' Surreply," filed at Dkt. # 64.
Whether plaintiffs' had good cause to supplement their arguments regarding the excess scrutiny to which Mr. Rodgers' attendance records were subjected is doubtful but the Court will consider the surreply in its entirety.
Whether there is a genuine issue of material fact regarding plaintiff's withdrawal of his request for FMLA leave on November 28, 2000, cannot be determined from the single page of Mr. Rodgers' deposition transcript attached as Exhibit 2 to the Supplemental Declaration of George Kargianis. Plaintiffs have not provided sufficient portions of the transcript to identify the conversation or letter about which Mr. Rodgers is testifying. Plaintiffs shall, within four days of the date of this Order, provide additional pages of Mr. Rodgers' transcript as necessary to identify these communications. No additional declarations or other forms of evidence will be accepted or considered by the Court.
Plaintiffs' insertion of the phrase "December 4" before the word "letter" at pate 3 of their Surreply to Defendant's Reply Brief is unsupported.
For all of the foregoing reasons, plaintiffs' motion for leave to file a surreply is GRANTED. Plaintiffs are further ORDERED to provide whatever additional pages of Mr. Rodgers' transcript are necessary to identify with particularity the conversation and letter about which Mr. Rodgers is testifying on page 199, Vol. II, of his deposition.